& 03-3384 United States of America v. Andrea Schnupp, a/k/a ANDREA LYLE Andrea Schnupp

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-1964 & 03-3384
UNITED STATES OF AMERICA
v.
ANDREA SCHNUPP,
a/k/a ANDREA LYLE
Andrea Schnupp,
Appellant at No. 03-1964
UNITED STATES OF AMERICA
v.
ERIC LAMAR WORMSLEY,
a/k/a M ichael Wormsley,
a/k/a Michael Wallace
Eric Lamar Wormsley,
Appellant at No. 03-3384
On Appeal from the
United States District Court for the
Western District of Pennsylvania
D.C. Criminal No. 02-cr-00279
(Honorable Donetta W. Ambrose)
D.C. Criminal No. 02-cr-00203
(Honorable Maurice B. Cohill, Jr.)
Argued February 9, 2004
Before: SCIRICA, Chief Judge,
ROTH and McKEE, Circuit Judges
(Filed May 18, 2004)
Karen S. Gerlach, Esquire (Argued)
Office of Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222
Attorney for Appellants
Christine A. Sanner, Esquire (Argued)
Bonnie R. Schlueter, Esquire
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, Pennsylvania 15219
Attorneys for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
At issue is whether a criminal
sentence served in an alternative housing
facility such as a halfway house can
qualify as “a prior sentence of
imprisonment” under § 4A1.1 of the U.S.
Sentencing Guidelines for the purpose of
calculating the criminal history score. In
two separate cases before us, United States
v. Schnupp, No. 03-1964, and United
States v. Wormsley, No. 03-3384,
defendants contend their prior sentences
served in halfway houses should be
classified under § 4A1.1 as “prior
sentences,” not “prior sentences of
imprisonment.” Defendants seek to vacate

-- 1 of 21 --

2
and remand for resentencing. We will
affirm.
I.
A.
Andrea Schnupp pled guilty to
fraudulently receiving Social Security
benefit payments in violation of 42 U.S.C.
§ 408(a)(5).1 The presentence report
(PSR) designated an adjusted offense level
of 8 and a criminal history score of 7 –
three points under U.S.S.G. § 4A1.1(a) for
a 1998 narcotics conviction; one point
under § 4A1.1(c) for a conviction for
resisting arrest and disorderly conduct; two
points under § 4A1.1(d) for committing
the instant offense while on parole; and
one point under § 4A1.1(e) for committing
the instant offense within two years of
being released from a sentence of
imprisonment. Schnupp’s sentencing
guideline range was 10-16 months.
Schnupp contests the assignment of
criminal history points on her 1998 state
narcotics conviction. In 1998, a state
judge sentenced Schnupp to three
c o n s e c u t iv e six - m o n t h t e r m s o f
imprisonment in the Allegheny County
jail. See 42 Pa. Cons. Stat. § 9762(3).2
But the judge also permitted alternative
housing. The state court’s judgment3
reads:
And now [count two] Jan 08 1998,
in open court, defendant appearing
with counsel, sentenced to pay a
fine of 6¼¢ to the Commonwealth.
Pay costs of prosecution and
undergo an imprisonment of 6 mos
in the Allegheny County Jail and
stand committed. Eff 3-9-98.
And now [count three] Jan 08
1998, in open court, defendant
appearing with counsel, sentenced
to pay a fine of 6¼¢ to the
Commonwealth. Pay costs of
prosecution and undergo an
imprisonment of 6 mos in the
Allegheny County Jail and stand
committed. Consec. [consecutive]
Ct 2 with work release[.]
1From December 1997 to May 2001,
Schnupp had withdrawn approximately
$26,942.80 in Social Security funds from
her son’s direct deposit account after her
son had become self-sustaining and
employed.
242 Pa. Cons. Stat. § 9762 specifies:
All persons sentenced to total or
partial confinement for:
. . .
(3) maximum terms of less than
two years shall be committed to a
c o u n t y p r i s o n w i t h i n t h e
jurisdiction of the court except that
as facilities become available on
dates and in areas designated by the
G o v e r n o r i n p r o c la m a t i o ns
declaring the availability of State
correctional facilities, such persons
may be committed to the Bureau of
Correction for confinement.
3The portions appearing in italics were
either handwritten or added with a date
stamp to the pre-printed form.

-- 2 of 21 --

3
And now [count four] Jan 08 1998,
in open court, defendant appearing
with counsel, sentenced to pay a
fine of 6¼¢ to the Commonwealth.
Pay costs of prosecution and
undergo an imprisonment of 6 mos
in the Allegheny County Jail and
stand committed. Consec. Ct 3[.]
Alt hsng [alternative housing] as
arranged with work release[.]
Schnupp served her sentence by spending
15 months at the Alcohol Rehabilitation
House (“ARC House”), a halfway house
that permits work release and judicially
authorized holiday passes.
Schnupp contends the plain
meaning of “sentence of imprisonment” in
U.S.S.G. § 4A1.1(a) requires actual
imprisonment in a prison or jail. Because
she served her sentence in a halfway
house, not a jail, she argues, her prior
sentence does not qualify as a “sentence of
imprisonment” under § 4A1.1(a), and her
1998 conviction should be classified
instead as a “prior conviction” under §
4A1.1(c). With this reclassification,
Schnupp would have received only four
criminal history points,4 placing her in
criminal history category III rather than
IV. With an offense level of 8, her
guideline sentencing range would have
been 6-12 months instead of 10-16
months, and she would have been eligible
for probation together with home
detention, intermittent confinement, or
community confinement.
The District Court rejected
Schnupp’s argument and assigned her a
split sentence of five months imprisonment
followed by five months of home
detention, three years of supervised
release, and restitution of $25,900.
Schnupp appealed, seeking to vacate and
remand.
B.
Eric Lamar Wormsley pled guilty to
possession of a firearm in violation of 18
U.S.C. § 922(g) and possession with intent
to distribute heroin in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
Wormsley’s PSR calculated his base
offense level at 21 and his criminal history
score at 10. W ormsley was assigned two
criminal history points each under §
4A1.1(b) for his prior convictions in 1996,
1997 and 1998; one point each under §
4A1.1(c) for prior convictions in 1997 and
1999; and two points under § 4A1.1(e) for
committing the instant offense while on
probation, for a total of ten criminal
history points. This placed Wormsley in
criminal history category V, and combined
with the offense level of 21, resulted in a
guideline range of 70-87 months of
imprisonment.
Wo rmsley objec ted to the
assignment of two criminal history points
4Schnupp contends she should have
received one point each under § 4A1.1(c)
for the prior 1998 narcotics conviction and
the 1993 resisting arrest and disorderly
conduct conviction, and two points under
§ 4A1.1(d) because the offense was
committed while on probation, for a total
of four criminal history points.

-- 3 of 21 --

4
to his 1998 conviction. The state court
judge sentenced Wormsley5 as follows:
And now 8-3-99, Defendant
sentenced to pay a fine of 6¼¢ to
the Commonwealth. Pay costs of
prosecution, and undergo an
imprisonment of not less than 3 or
more than 6 months in the
Allegheny County Jail and stand
committed. [E]ffective 9-14-99.
Defendant is permitted Alternative
Housing at ARC-Goodwill-ACTA.
Defendant to pay costs.
Wormsley raised the same
argument as did Schnupp. Because he
served his sentence in ARC House,
Wormsley contended the 1998 prior
sentence should not be categorized as a
“sentence of incarceration of at least sixty
days” as specified by § 4A1.1(b), but
rather as a “prior sentence” under §
4A1.1(c). Under this calculation, his
criminal history score would have been 9,
his adjusted offense level 21, and his
sentencing guideline range 57-71 months
instead of 70-87 months. The District
Court rejected this argument and sentenced
Wormsley to 80 months in prison.
Wormsley timely appealed.
II.
We have jurisdiction under 18
U.S.C. § 1291. In addition, 18 U.S.C. §§
3742(a)(1) and (a)(2) confer appellate
jurisdiction to review criminal sentences.
We exercise plenary review of the
interpretation of the sentencing guidelines.
United States v. Figueroa, 105 F.3d 874,
875-76 (3d Cir. 1997). We review
deferentially the District Co urt’s
application of the guidelines to the facts,
applying the clear error standard. Buford
v. United States, 532 U.S. 59, 64 (2001);
United States v. Zats, 298 F.3d 182, 185
(3d Cir. 2002).
III.
A.
U.S.S.G. § 4A1.1 provides the
following instructions to calculate criminal
history scores for sentencing purposes:
The total points from items (a)
through (f) determine the criminal
history category in the Sentencing
Table in Chapter Five, Part A.
(a) Add 3 points for each prior
s e n t e n c e o f i m p r i s o n m e n t
exceeding one year and one month.
(b) Add 2 points for each prior
sentence of imprisonment of at
least sixty days not counted in (a).
(c) Add 1 point for each prior
sentence not counted in (a) or (b),
up to a total of 4 points for this
item.
(d) Add 2 points if the defendant
committed the instant offense while
under any criminal justice sentence,
including probation, parole ,
supervised release, imprisonment,
work release, or escape status. 5Portions in italics were handwritten on
the preprinted form.

-- 4 of 21 --

5
(e) Add 2 points if the defendant
committed the instant offense less
than two years after release from
imprisonment on a sentence
counted under (a) or (b) or while in
imprisonment or escape status on
such a sentence. If 2 points are
added for item (d), add only 1 point
for this item.
U.S.S.G. § 4A1.1 (2003). The sentencing
guidelines define the term “prior sentence”
as “any sentence previously imposed upon
adjudication of guilt.” Id. § 4A1.2(a)(1).
At issue is how to define the term
“sentence of imprisonment” found in §§
4A1.1(a) and (b) for criminal history
scoring purposes. Defendants claim that a
“sentence of imprisonment” must be spent
in a prison, jail or jail-type institution in
order to assign criminal history points
under §§ 4A1.1(a) or (b). They argue that
time served at an alternative housing
facility, such as a halfway house, should
not qualify as “imprisonment,” even if the
pronounced sentence initially assigned
them to a prison or jail. They maintain
they did not serve a “sentence of
imprisonment” at ARC House because
they were never confined in a jail-type
institution.
Although § 4A1.2 does not define
the term “sentence of imprisonment,” the
commentary for § 4A1.1 provides, “[t]he
definitions and instructions in § 4A1.2
govern the computation of the criminal
history points. Therefore, §§ 4A1.1 and
4A1.2 must be read together.” U.S.S.G. §
4A1.1, cmt. (2003). Section 4A1.2(b)
states, “[t]he term ‘sentence of
imprisonment’ means a sentence of
incarceration and refers to the maximum
sentence imposed.” U.S.S.G. § 4A1.2(b)
(2003). The guidelines provide no further
guidance on whether a “sentence of
incarceration” for these purposes requires
confinement in a prison or jail. Black’s
Law Dictionary defines “imprisonment” as
“[t]he act of confining a person, esp. in a
prison; the state of being confined.”
Black’s Law Dictionary 760 (7th ed.
1999). “Incarceration” is similarly defined
as “[t]he act or process of confining
someone.” Id. at 764. A person may be
confined if he is “[held] within bounds [or]
restrain[ed] from exceeding boundaries.”
Id. at 476. Nevertheless, neither the
guidelines, its commentary, nor common
usage reflect whether the term “sentence
of imprisonment” or “sentence of
incarceration” refers to the initial
pronouncement of sentence, the type or
location of confinement, or the conditions
of confinement.
The Commission has offered some
guidance, although not in its official
c o m m e n tar y. I n S u p p l e m e n t a l
Illustrations on Criminal History Scores,
the Commission stated that the sentencing
court’s pronouncement of sentence
controls when calculating criminal history,
not the manner in which or location where

-- 5 of 21 --

6
the sentence is served.6 Example D.5 of
the Supplementary Illustrations states:
Residence in a halfway house
[when assigned as a condition of
probation] is treated as a non-
i mp riso n m e n t s e n t e n c e f o r
purposes of criminal history. Had
the defendant been sentenced to
i m p r i s o n m e n t w i t h a
recommendation for halfway house
placement, the sentence would be
tre a t e d a s a se n t e n c e of
imprisonment.
United States Sentencing Commission,
Supplementary Illustrations on Criminal
History 17 (Dec. 1987). According to the
illustration, an additional condition or
recommendation specified by the judge
should not alter the status of the sentence
as one of “imprisonment.” The decisive
factor apparently is whether the initial
sentence was one of imprisonment or
probation.
In its publication, Questions Most
Frequently Asked About the Sentencing
Guidelines, the Commission addressed
whether alternative sentences counted as
imprisonment for sentencing purposes.
If the offender was
sentenced to imprisonment and as
part of the term of imprisonment
was placed on work release status,
this would be treated as a sentence
of imprisonment. If the sentence
did not involve a term of
imprisonment (e.g., a sentence of
probation with a cond ition
requiring residency in a halfway
house), the sentence would not be
considered imprisonment and
would fall under § 4A1.1(c). A
sentence of residency in a halfway
h o u s e i s n o t c o n s i d e r e d
imprisonment (see Background
Commentary to § 4A1.1 (second
paragraph)).
United States Sentencing Commission,
Questions Most Frequently Asked About
the Sentencing Guidelines, Vol. VII,
question 76 (June 1, 1994). According to
the Questions, therefore, a sentence of
probation or sentence to a halfway house is
not considered imprisonment, while a
sentence of imprisonment which stipulates
or permits alternative treatment is treated
as a sentence of imprisonment for criminal
history calculation.
As noted, neither the Supplemental
Illustrations nor the Most Frequently
Asked Questions are binding. Still, one
other section of the guidelines
demonstrates a preference for reliance on
the sentencing judge’s pronouncement of
sentence for calculation purposes, rather
than on the location or manner of service
by the defendant. Application Note 2 to §
4A1.2 instructs the court to determine the
length of the sentence by looking at the
stated maximum of the pronounced
6The Commission issued, but did not
officially adopt as commentary, the
Supplementary Illustrations to accompany
the 1987 Guidelines.

-- 6 of 21 --

7
sentence, not at the length of the sentence
actually served by the defendant.7
Reliance on the pronouncement of
sentence rather than on the manner or
location of service is likely to yield more
consistent application of the guidelines.
As noted, the judges here sentenced
defendants to terms of imprisonment but
granted permission to serve the sentences
in an alternative housing facility. Under
Pennsylvania law, the Allegheny County
jail had discretion to designate alternate
housing. See Commonwealth v. Koskey,
812 A.2d 509, 512 n.3 (Pa. 2002) (“In
Allegheny County, alternative housing is
governed by the County Jail Oversight
Board pursuant to 16 P.S. § 6004-A.”).8
This discretion in determining a
defendant’s eligibility for alternate
housing may be guided by several factors
including assessment of the defendant,
availability of space, and levels of
restriction. See United States v. Urbizu, 4
F.3d 636, 639 (8th Cir. 1993); United
States v. Schomburg, 929 F.2d 505, 507
(9th Cir. 1991). If the manner or location
of service should define “sentence of
imprisonment,” then a “prior sentence of
imprisonment” could be determined by
variables like availability of space. On the
other hand, reliance on the pronouncement
of sentence will promote consistency in
application of the guidelines.
B.
Defendants rely on Application
Note 2 to § 4A1.2 to support their
assertion that time must be served in a
prison or jail to be classified as a “sentence
of imprisonment.” Application Note 2
reads:
To qualify as a sentence of
imprisonment, the defendant must
have actually served a period of
imprisonment on such sentence (or,
if the defendant escaped, would
have served time). See §
4A1.2(a)(3) and (b)(2).
U.S.S.G. § 4A1.2, appl. n.2 (2003).
Defendants contend the directive that “the
defendant must have actually served a
period of imprisonment” addresses the
situs and manner of the sentence and
requires service in a jail-type institution,
not an alternative housing facility like a
halfway house. But this argument does not
address the meaning of “imprisonment” or
7Application Note 2 reads:
For the purposes of applying §
4A1.1(a), (b), or (c), the length of a
sentence of imprisonment is the
stated maximum . . . That is,
criminal history points are based on
the sentence pronounced, not the
length of time actually served. See
§ 4A1.2(b)(1) and (2).
U.S.S.G. § 4A1.2, appl. n.2 (2003).
8See also Testimony of John Ross,
ARC House Director of Admissions
(“[T]he judge sentences everybody to the
Allegheny County Jail for a term of
imprisonment and recommends alternative
housing. It’s up to the jail to determine
whether or not they would be eligible for
alternative housing and Ms. Schnupp
was.”).

-- 7 of 21 --

8
the type, nature or level of confinement. A
straightforward reading of Application
Note 2 is that it refers to a temporal
concept — the period of time the
defendant served or would have served in
the event of an escape.
The citation at the end of
Application Note 2 refers to §§
4A1.2(a)(3) and (b)(2). Sectio n
4A1.2(a)(3) provides that, for criminal
history computation purposes, sentences
that have been suspended should be
classified as “prior sentences,” not “prior
sentences of imprisonment.”9 Section
4A1.2(b)(2) specifies that, where part of a
sentence is suspended, that portion is
properly excluded in calculating the
sentence’s length. As a result, suspended
incarceration time that was not served in
any facility is not counted as prison time.
United States v. Jones, 107 F.3d 1147,
1167 (6th Cir. 1997) (Krupansky, J.,
dissenting) (“[S]uspended incarceration
time will not be served anywhere, and
hence is not counted as prison sentence
time.”). Sections 4A1.2(a)(3) and (b)(2)
do not distinguish between sentences
“actually served” in a jail-type institution
and sentences served in an alternate
housing facility. Therefore Application
Note 2 cannot support the proposition that
§ 4A1.1 requires a sentence to be served in
a jail-type institution. See Urbizu, 4 F.3d
at 638 (rejecting a similar argument
regarding Application Note 2 and holding
that a sentence of imprisonment served on
work release was a “sentence of
imprisonment”).
Defendants also claim that
Application Note 6 to § 4A1.1 dictates that
a sentence of imprisonment under §§
4A1.1(a) and (b) must be served in a
prison or jail, not a halfway house.
Application Note 6 instructs:
Subdivisions (a), (b), and (c) of §
4A1.1 distinguish confinement
sentences longer than one year and
one month, shorter confinement
sentences of at least sixty days, and
all other sentences, such as
confinement sentences of less than
sixty days, probation, fines, and
residency in a halfway house.
U.S.S.G. § 4A1.1, appl. n.6 (2003). But
Application Note 6 does not specify that it
is the manner in which a sentence is served
that dictates whether a sentence is a
“sentence of imprisonment.” Furthermore,
the Note contains no definition of
confinement. Application Note 6 does not
advance defendants’ argument.
IV.
The prono u n c e d s e n t en c e,
therefore, determines the criminal history
score. A sentence to prison or jail is
9Section 4A1.2(a)(3) states: “A
conviction for which the imposition or
execution of a sentence was totally
suspended or stayed shall be counted as a
prior sentence under § 4A1.1(c).” Section
4A1.2(b)(2), in turn, specifies: “If part of
a sentence of imprisonment was
suspended, ‘Sentence of imprisonment’
refers only to the portion that was not
suspended.”

-- 8 of 21 --

9
“sentence of imprisonment” under §
4A1.1(a) and (b) and results in the
assignment of additional points, whether
or not permission is given for work
release, furlough or placement in a less
restrictive alternative facility.
The sentencing judges here
imposed upon each defendant a sentence
of imprisonment in the Allegheny County
jail.10 Both Wormsley and Schnupp
received prior sentences of imprisonment
under § 4A1.1(a) and (b), respectively,
plus additional points under § 4A1.1(e).
The District Court properly held that
d e f e n d a n ts ’ p r i o r s e n t e n c e s o f
imprisonment increased their criminal
history calculations.
10ARC House Director of Admissions
John Ross described the procedure by
which Ms. Schnupp was sentenced by the
judge and housed at ARC House:
Q: Based on your review and your
knowledge of ARC House and the
Allegheny County prison system,
was Ms. Schnupp sentenced to a
term of imprisonment?
A: Yes. The way that works is the
judge sentences everybody to the
Allegheny County Jail for a term of
imprisonment and recommends
alternative housing. It’s up to the
jail to determine whether or not
they would be eligible for
alternative housing and Ms.
Schnupp was.
Q: Was Ms. Schnupp free to come
and go at her own choosing from
ARC House when she was there?
A: No, she is not. She has to have
permission to do so both by the
Court and by the staff at ARC
House.
Q: What would have happened if
Ms. Schnupp would have left
without that permission?
A: We would have went back to the
judge and reported her as an
escaped prisoner. A warrant would
have been issued. We would also
have notified the Allegheny County
Jail and the county police.
Q: Was Ms. Schnupp, while at your
facility, considered an inmate of the
Allegheny County Jail?
A: Yes, she is an open file and a
record is kept on her. When I get
her out of jail, she is released to my
custody. I have to sign for her
release.
. . .
Q: To your knowledge, did Judge
McGregor have the option to
s e n t e n c e M s . S c h n u p p t o
intermediate punishment in this
case?
A: Yes, sir.
Q: Did he do so?
A: No, sir.

-- 9 of 21 --

10
V.
Other courts of appeals have relied
on the pronouncement of sentence, not the
location or manner of service, in
calculating the criminal history score. In
United States v. Schomburg, the Court of
Appeals for the Ninth Circuit held that a
defendant’s prior sentence to a county jail
was properly classified as a “sentence of
imprisonment” under § 4A1.1(b) even
though the defendant served his sentence
by participating in a weekend work project
administered by the sheriff. 929 F.2d 505,
507 (9th Cir. 1991). The court held that,
while the sheriff had the discretion to
modify the defendant’s sentence, it was
“the sentence, as pronounced by the court
at the outset” that determined its
classification under the guidelines. Id. at
507; see also United States v. Latimer, 991
F.2d 1509, 1515 (9th Cir. 1993).
Similarly, in United States v.
Urbizu, the defendant was sentenced to a
six-month term of imprisonment in a “jail
type institution” but instead served five
months in a halfway house. 4 F.3d at 638.
The Court of Appeals for the Eighth
Circuit found that Application Note 2 to §
4A1.2 could not be used by the defendant
“to characterize his five-month stint in a
halfway house as something other than
imprisonment.” Id. In affirming the
district court’s reliance on the sentencing
court’s written judgment in awarding two
criminal history points under § 4A1.1(b),
the court held that the nature of a
defendant’s prior confinement should be
determined by the prior sentencing court’s
pronouncement of sentence. Id.
In United States v. Ruffin, the Court
of Appeals for the District of Columbia
considered the prior sentence of the
defendant “for imprisonment for a period
of (1) one year. Work release ordered.
Hours: 6:00 AM thru 6:00 PM Monday
thru Friday.” 40 F.3d 1296, 1299 (D.C.
Cir. 1994). The court concluded the
defendant “actually served a period of
imprisonment” for criminal history
calculation purposes, even though he was
allowed to leave the facility on a weekday
work release pass. Id.
The Courts of Appeals for the Fifth
and Sixth Circuits have stated in dicta that
the original pronounced sentence, not the
judge’s recommendation or the actual
location or manner of serving the sentence,
should be relied upon for sentencing
guideline calculations. See United States
v. Valdez-Valdez, 143 F.3d 196, 202 n.41
(5th Cir. 1998) (“We note in passing that
Valdez did not argue that his work release
was not a ‘sentence of imprisonment’
under the Guidelines. Such an argument
would likely fail as well.”); United States
v. Rasco, 963 F.2d 132, 136 n.4 (6th Cir.
1992) (“Had the defendant been sentenced
to imprisonment with a recommendation
for halfway house placement, the sentence
would be treated as a sentence of
imprisonment.”).
Defendants cite to United States v.
Pielago, 135 F.3d 703 (11th Cir. 1998), for
the proposition that a sentence to a
halfway house is not a “sentence of
imprisonment.” In Pielago, the Court of
Appeals for the Eleventh Circuit held that
a prior term of confinement in a

-- 10 of 21 --

11
community treatment center cannot be
treated as a “sentence of imprisonment”
under § 4A1.1. Id. at 705. But the court
based its decision on the assumption that
the sentencing judge sentenced the
defendant directly to the community
treatment center. Id. at 712-13 (“Pielago’s
stay in a community treatment center was
not the consequence of a parole violation.
He was sentenced directly to that
confinement.”). This distinction is
essential. Here, Schnupp and Wormsley
were sentenced directly to imprisonment in
the Allegheny County jail with permission
for work release and alternative housing.
One court of appeals has interpreted
“imprisonment” to denote time actually
spent in a prison. See United States v.
Elkins, 176 F.3d 1016 (7th Cir. 1999). But
the facts in Elkins differ substantially from
those here. In Elkins, the defendant was
sentenced to tw enty-four mo nths
imprisonment, plus five years of
supervised confinement upon his release
from confinement, with the first 120 days
of supervised release to be served in a
community correctional center. Id. at
1019. The defendant argued that
community confinement was a form of
imprisonment, so the two components of
his sentence were redundant. The court
rejected this argument, drawing a
distinction between the sentence of
imprisonment and subsequent sentence to
community confinement up on th e
defendant’s release. Id. at 1020. The
court found that community center
confinement resulted from an order of
supervision related to supervised release
and was not an additional term of
imprisonment. Id. at 1021. In contrast,
defendants here were sentenced directly to
jail and permitted to serve that
imprisonment term in an alternative
housing facility.
VI.
The sentencing judges correctly
applied the sentencing guidelines in
calculating the defendants’ criminal
history scores. We will affirm the
judgments of conviction and sentences in
both United States v. Schnupp and United
States v. Wormsley.
UNITED STATES OF AMERICA v.
ANDREA SCHNUPP, a/k/a ANDREA
LYLE
Andrea Schnupp, Appellant at No.
03-1964
UNITED STATES OF AMERICA v.
ERIC LAMAR WORMSLEY, a/k/a
Michael Wormsley, a/k/a Michael Wallace
Eric Lamar Wormsley, Appellant at No.
03-3384
McKee, Circuit Judge, concurring.
I join in the analysis of my
colleagues because I agree that the
principles of statutory construction their
analysis relies upon dictate the result in
these cases. We therefore must hold that
the “pronounced sentence. . . determines
the criminal history score” for purposes of
determining whether a prior sentence is a
“sentence of im prisonment” under

-- 11 of 21 --

12
U.S.S.G. § 4A1.1. However, I write
separately to call attention to the fact that
this result leads to unintended and unjust
disparities in awarding criminal history
points. These disparities arise because the
manner of pronouncing sentences of
imprisonment will often be governed by
factors that have nothing to do with
assessments that the guidelines attempt to
incorporate into a defendant’s criminal
history category. As I shall explain,
serendipity can often play as significant a
role in the way a sentence is pronounced as
the prior judge’s assessment of the need to
incarcerate.
Given the wording of § 4A1.1 and
the structure of the sentencing guidelines,
I doubt that Congress or the Sentencing
Commission actually considered whether
confinement in “alternative housing” is
t a n t a m o u n t t o a “ s e n te n c e o f
imprisonment” for purposes of calculating
a criminal history category when the
guidelines were initially drafted. As my
colleagues note, U.S.S.G. §§ 4A1.1(a) and
(b) both refer to a “sentence of
imprisonment . . . . ” Yet, subsection (c)
of that guideline refers only to “each prior
sentence not counted in (a) or (b) . . . .”
This certainly suggests that the “prior
sentence” referenced in subsection (c) is to
be distinguished from a “sentence of
imprisonment.” The latter obviously refers
to incarceration in a prison or jail-type
facility. The guideline therefore appears to
distinguish between such incarceration and
other sentences. However, as my
colleagues explain, the applicable
principles of statutory construction require
a different conclusion.
Had this precise question been
considered when the guidelines were
drafted, I believe subsection (c) would
have been worded differently. At the very
least, language would have been added to
address alternative sentences by either
distinguishing them from “prior
sentence(s ) of imprisonment,” or
specifically directing how such alternative
confinement should be treated under §
4A1.1. Instead, the guidelines contain the
“catch all” reference to “sentence[s] not
counted in [§ 4A1.1] (a) or (b).”
We rely upon the pronounced
sentence because we assume that
pronouncement is the best way to
determine the sentencing court’s intent.
We further assume that the sentencing
judge’s intent regarding where a defendant
is to be confined is more germane to a
subsequent criminal history category than
whether the defendant was actually
confined in a prison or jail-type facility as
opposed to alternative housing. However,
that pronouncement is not necessarily
more relevant to a subsequent § 4A1.1
calculation than any accompanying
sentencing recommendation. In fact,
consideration of the actual place of
confinement will often tell a subsequent
court far more about a defendant’s
background than the precise language used
in imposing a prior sentence.
In the cases before us, the
sentencing judge did articulate that the
defendants were to “undergo an

-- 12 of 21 --

13
imprisonment [for] . . .” a given period.
See Maj. Op. at 2-4. In Schnupp’s case,
the court added “[alternative housing] as
arranged with work release.” In
Wormsley’s case, the court stipulated that
Wormsley was “permitted Alternative
Housing at ARC . . . .” Id. Both
defe ndan ts ultimately served their
sentences in the alternative housing rather
than the county jail, just as the judge
recommended. A brief discussion of the
manner in which judges pronounce
s e n t e n c es i n P e n n sy lv a n i a w i l l
demonstrate why that is more significant to
a subsequent calculation under § 4A1.1
than the manner in which the sentences
were pronounced.
Prior to 1990, a state trial judge in
Pennsylvania had two options if he/she
wanted to impose a sentence of
confinement. The judge could either
impose a state sentence or a county
sentence. 42 Pa. C.S.A. § 9762. If the
sentence that was imposed had a maximum
period of incarceration of five or more
years, it was deemed a state sentence and
the defendant had to be incarcerated in a
state prison. Such defendants were in the
custody and control of the Pennsylvania
Bureau of Corrections, and the Bureau
therefore determined where the defendant
would be incarcerated. If the sentence had
a maximum term of less than two years,
the defendant was to be “committed to a
county prison within the jurisdiction of the
court.” 42 Pa. C.S.A. § 9762(3).11
Therefore, a sentencing judge lost
authority to confine a defendant in
alternative housing if the defendant
received a “state sentence.” However, a
judge could sentence such a defendant to
alternative housing by imposing a
probationary sentence and ordering a
certain period of residency at an
appropriate alternative facility (including
11 Defendants who were sentenced to a
maximum period of incarceration of more
than two years but less than five years
could be committed to the state prison
under the Bureau of Corrections or to a
county prison within the jurisdiction of the
court, at the discretion of the sentencing
judge. 42 Pa. C.S.A. § 9762(2). Thus,
when imposing such a sentence, a court
also had authority to commit defendants to
the Bureau of Corrections for confinement
when “facilities become available . . .[as]
designated by the G o vernor i n
proclamations declaring the availability of
State correctional facilities. . . .” 42 Pa.
C.S.A. § 9762(3).
Therefore, considerations of space
could affect how a sentence was
pronounced despite my colleagues’ belief
that relying upon the pronouncement
rather than the place of confinement will
negate such extraneous factors as
availability of space. See Maj. Op. at 7
(“This discretion in determining a
defendant’s eligibility for alternate
housing may be guided by several factors
including assessment of the defendant,
availability of space . . . ”).

-- 13 of 21 --

14
successful completion of inpatient
treatment) as a condition of probation.12
However, in 1990, the Pennsylvania
legislature enacted 42 Pa. C.S.A. § 9763,
which specifically permits a court to
sentence a defendant receiving a county
sentence to intermediate punishment or
“partial confinement” in alternative
housing such as a halfway house or
inpatient program.13 Accordingly, after
1990, a state judge in Pennsylvania who
wanted a defendant to be confined in
alternative housing rather than a jail or
prison had several options. The judge
could still give a probationary sentence
and impose the condition of a given period
of confinement in alternative housing
including an inpatient treatment program.
However, the judge could also impose a
sentence of less than two years in jail and
recommend that the defendant be
transferred to alternative housing, or
directly pronounce a period of
confinement in alternative housing (with
or without the component of inpatient
treatment). For purposes of a subsequent
inquiry under § 4A1.1, the only distinction
between those sentences may well have
been nothing more than the habits of
different judges.
As noted above, the sentences here
were pronounced as sentences of
imprisonment with a recommendation that
they be served in alternative housing, ARC
House. However, even assuming that we
can therefore conclude that the sentencing
judges pronounced a “sentence of
imprisonment,” we still learn little about
the particular offender. This is true
because sentences may be pronounced in a
particular manner simply to allow the
alternative housing facility to be
reimbursed under its contract with a given
county. See Commonwealth v. Garbisch,
No. CC 20010301 (Pa. Ct. of Common
Pleas, Allegheny Cty., filed Feb. 6,
2003).14
In Garbisch, the sentencing judge
entered into a discussion with the director
12 I will elaborate upon the significance
of this in greater detail below. For now, it
suffices to note that, given sentencing
regimes like the one in Pennsylvania prior
to 1990, the distinction drawn by the
S e n t e n c in g C o m m i s s i o n i n i t s
Supplemental Illustrations on Criminal
History Scores between imposing a stay at
a halfway house as a condition of
probation and pronouncing a jail sentence
with a recommendation that the
confinement be in a halfway house was
often an illusory distinction at best, see
Maj. Op. at 5-6, because it often said more
about the authority of the sentencing judge
than the culpability of the defendant.
13 This change in the sentencing scheme
is discussed in Comm onwealth v.
Conahan, 589 A.2d 1107, 1110 n.1 (Pa.
1991).
14 Garbisch is an unreported opinion
that may be found on the website kept by
the Allegheny County Bar Association at
http://www.acba.org/scripts/cr2br.pl?/opi
nion/03053004.opn.

-- 14 of 21 --

15
of the Program for Female Offenders, a
program maintained to provide alternative
housing and rehabilitation options for
female defendants “sentenced to serve
periods of incarceration in the Allegheny
County Jail.” The program director
explained that under the terms of his
contract with Allegheny County, the
warden of the county jail referred suitable
inmates to the program for housing, and
the program was then reimbursed by the
county.15 A judge who wanted to confine
a defendant at the Program for Female
Offenders was therefore compelled to
pronounce a sentence of imprisonment in
the county jail with a recommendation that
she be transferred to alternative housing.16
That appears to be what happened in
Garbisch, and it may explain why
Schnupp’s and Wormsley’s sentences were
pronounced as they were. In Garbisch, the
court explained:
The program is completely
funded by the County
through its payments for the
housing of inmates there.
The County paid for the
construction of the facility
out of which the Program
operates. For all practical
purposes, the Program
operates as an adjunct to the
County Jail. The contract
makes it clear that as such
an adjunct, its operation is
to be supervised by the
Warden. . . . It is the Court
that directs the Warden
w h e t h e r a p a r t i c u l a r
defendant may be . . .
released to serve th e
sentence at an alternative
housing facility. . . .
Garbisch, at *3-4 (citing to 42 Pa. C.S.A.
§ 9751 et seq.).
The arrangement in Garbisch was
dictated to a large extent by the
jurisdiction of the Allegheny County
Board of Prisons, which had ultimate
jurisdiction over the jails in Allegheny
County. The Board had, in turn, delegated
some of that authority to the warden of the
county jail. However, the legislation
establishing that Board applies only to
Pennsylvania cities of the second class,
and therefore excludes most of the
jurisdictions in Pennsylvania including the
Commonwealth’s largest jurisdiction,
Philadelphia. It would therefore have been
very misleading to afford sentencing
pronouncements in Allegheny County the
same significance as pronouncements in
Philadelphia County irrespective of any
15 Counties are more than willing to
enter into such contracts with appropriate
facilities because defendants can usually
be housed for less money in the less secure
facilities than in the county jail.
16 Given the dialogue between the
director of the program and the sentencing
court, it appears that the Program could
not accept inmates directly from court
under the terms of its contract or under the
administrative structure in Allegheny
County at the time.

-- 15 of 21 --

16
accompanying recommendation by the
sentencing judge.
By way of further illustration, I note
that my colleagues cite part of the
discussion that occurred between the
sentencing judge in Schnupp’s case and
John Ross, ARC’s director of admissions.
Ross explained the relationship between
his program and the courts in Allegheny
County. He explained that judges
“sentence[] everybody to the Allegheny
County Jail for a term of imprisonment
and recommend[] alternative housing. It’s
up to the jail to determine whether or not
they would be eligible for alternative
housing and Ms. Schnupp was.” Maj. Op.
at 7 n.8. That arrangement arises from the
particular relationsh ip of c oun ty,
sentencing judge, and program as well as
the jurisdiction of the Allegheny County
Board of Prisons.
I delve into this level of detail
because it demonstrates the problems that
are endemic in attaching too much
significance to the manner of pronouncing
an earlier sentence and ignoring an
accompanying recommendation when
subsequently attempting to calculate a
sentence under § 4A1.1. If a defendant
had been sentenced in Pennsylvania when
a judge who wanted to impose a custodial
sentence in alternative housing had to
sentence a defendant to the county jail, “a
sentence of imprisonment” may well have
been pronounced with an appropriate
“recommendation” for alternative housing.
On the other hand, the defendant may have
received an identical sentence pronounced
as a sentence of probation conditioned
upon residence in alternative housing or
successful completion of an inpatient
program.
Although one could argue that it is
appropriate to distinguish the former from
the latter because one situation involves a
pronounced sentence of jail and the other
a sentence of probation, that argument
loses much of its force when we consider
the situation after 1990. After 1990, the
sentencing court could simply sentence a
defendant to a period of intermediate
punishment in alternative housing or an
inpatient drug program. See 42 Pa. C.S.A.
§ 9763(c). Pennsylvania courts have
concluded that the Pennsylvania legislature
“intended imprisonment and intermediate
punishment to be mutually exclusive, to be
treated differently.” Commonwealth v.
Koskey, 812 A.2d 509, 513-14 (Pa. 2002).
Accordingly, relying upon the definition of
“imprisonment” under the sentencing law
of Pennsylvania, a subsequent § 4A1.1
analysis would define the pre-1990 jail
sentence with a recommendation for
alternative housing as a prior “sentence of
imprisonment.” Yet, a subsequent
sentence of confinement in alternative
housing would not be a “prior sentence of
imprisonment” under § 4A1.1. The
difference stems from no offender
characteristic and it tells us nothing about
a prior judge’s assessment of a defendant
or the defendant’s level of culpability.
Rather, the distinction in the sentences
pronounced arises entirely from the
intervening change in the law or, as
illustrated by Garbisch, from the
contractual relationship of the entities

-- 16 of 21 --

17
involved in carrying out a “sentence” of
alternative housing. Therefore, I can not
a g r e e t h a t “ [ r ] e li a n c e o n t h e
pronouncement of sentence rather than on
the manner or location of service is likely
to yield more consistent application of the
guidelines.” Maj. Op. at 7.
Moreover, this problem is not
unique to Pennsylvania. Rather, the
disparity is relevant when comparing
various sentences from different states. A
cursory comparison of various states’ laws
illustrates this.
In Kansas, a judge could not
sentence a felony offender to alternative
housing under state law at the time the
defendant was sentenced in State v.
Fowler, 710 P.2d 1268 (Kan. 1985).
However, as in Pennsylvania before 1990,
a judge could accomplish the same result
by imposing a period of probation and
conditioning the probation upon successful
confinement in a residential center. The
court in Fowler explained: “[i]f the trial
court actually imposes a sentence of
commitment and desires to place the
defendant in a community corrections
residential center, it may do so only by
placing the defendant on probation and
making confinement in the community
corrections residential center a condition
of his probation.” Id. at 1274 (emphasis
added). The court also stated:
the legislative scheme . . .
permits a sentencing court
to utilize a community
corrections center through
the process of placing the
defendant on probation, but
requires that confinement in
the county corrections
residential center be made a
condition of probation. If a
defendant is committed
under a sentence, the
commitment must be made
to the custody of the
Secretary of Corrections,
who may then utilize
communi ty c o rrections
facilities by contract in
carrying out programs to
rehabilitate a convicted
felon.
Id. at 1276.
Similarly, in the District of
Columbia, prisoners are sentenced to the
custody of the Attorney General for a
period of time and thereupon placed in the
custody of the Corrections Department of
the District of Columbia pursuant to a
delegation of authority from the Attorney
General to the Commissioner of the
District. The Commissioner has statutory
authority to transfer prisoners “to any
available suitable or appropriate institution
or facility (including a residential
community treatment center). . .”.17
Sentences pronounced under such
sentencing schemes will later be “a prior
sentence of imprisonment” under U.S.S.G.
17 This authority is pursuant to a
Department of Justice order. See United
States v. Venable, 316 A.2d 857, 858 n.3
(App. D.C. 1974).

-- 17 of 21 --

18
§ 4A1.1 because the prior sentencing judge
lacked authority to sentence directly to a
community sanctions facility, not because
the judge intended to incarcerate a
defendant in a jail-type facility. The actual
intent to avoid “incarceration” is only
revealed through the sentencing court’s
recommendation.
However, in Colorado (as in
Pennsylvania after 1990), a sentencing
judge can simply impose “[a] direct
sentence to community corrections . . .”.
Beecroft v. Colorado, 874 P.2d 1041, 1045
(Colo. 1994).18 Delaware also gives
sentencing courts the authority to sentence
directly to confinement in a halfway house
or similar facility.19 See Walt v. State, 727
A.2d 836, 838 (Del. 1999). Similarly, in
certain instances, Ohio requires that a
judge specifically state whether he or she
is sentencing a defendant to a community-
based facility such as a halfway house. In
State v. Salter, 2000 WL 1038178 (Ohio
App. Jul. 27, 2000), the court was
reviewing a sentence imposed under Ohio
Revised Cod e § 451 1.99(A )(4)(a)
pertaining to sentencing for drunk driving.
The court stated: “When sentencing an
offender to a mandatory term of local
incarceration, the court shall specify
whether the term is to be served in a jail, a
community-based correctional facility, a
halfway house, or an alternative residential
facility.” 2000 WL 1038178 at *1 (internal
citation and quotation marks omitted).
Similarly, under Ohio Revised Code §
2929.16, Ohio courts are specifically
authorized to sentence first degree felons
to “non-prison alternatives.” See State v.
Winstead, 2004 WL 720331 (Ohio App.
Apr. 5, 2004).20 That statute expressly
authorizes the trial court to sentence
certain felony offenders to a period of
18 Any subsequent consideration of such
a sentence under § 4A1.1 is further
complicated by the fact that Colorado
distinguishes non-residential status at a
community correction facility from
residential status at a community
correction facility. See generally People v.
Hoecher, 822 P.2d 8 (Colo. 1991).
Colorado cour ts view com mu nity
corrections programs as providing trial
courts “with a sentencing medium that is
more severe than probation, but not as
harsh as incarceration.” Beecroft, 874 P.2d
at 1045.
19 However, Delaware also takes the
view that such a sentence constitutes
“imprisonment” as that word is used in
Article IV, Section 11(1)(b) of the
Delaware Constitution, id., for purposes of
awarding “jail time” credit against a later
sentence. For a comprehensive discussion
of the four general approaches to awarding
jail time credit for confinement in
alternative housing see Arizona v.
Reynolds, 823 P.2d 681, 681-85 (Ariz.
1992).
20 Salter and Winstead are unreported.
However, I do not cite them for any
precedential value. Rather, I refer to them
merely because they show the manner in
which some sentences have to be
pronounced in Ohio.

-- 18 of 21 --

19
confinement in alternative housing. Id. at
*3.
Finally, the majority notes that the
United States Sentencing Commission has
addressed the issue of alternative sentences
in the publication Questions Most
Frequently Asked About Sentencing
Guidelines. As my colleagues note, that
publication states:
If the offender was
sentenced to imprisonment
and as part of the term of
imprisonment was placed on
work release status, this
would be treated as a
sentence of imprisonment.
If the sentence did not
i n v o l v e a t e r m o f
im prisonment (e.g ., a
sentence of probation with a
c o n d i t i o n r e q u i r i n g
residency in a halfway
house), the sentence would
n o t b e c o n s i d e r e d
imprisonment and would
fall under § 4A1.1(c). A
sentence of residency in a
halfway house is not
considered imprisonment . .
. .
Maj. Op. at 6.
As I have discussed, this refers to the
seemingly straightforward situation of a
judge pronouncing a probationary sentence
and simply imposing residency in
alternative housing as a condition of that
probation. However, problems can arise
under § 4A1.1 even in this deceptively
unambiguous situation. For example, in
People v. Sturdivant, 312 N.W.2d 622, 623
(Mich. 1981), defendants were sentenced
to terms of probation with a condition that
six months of the probationary period be
served in the county jail.21 When
sentenced, the applicable statute stated,
“[a]s a condition of probation, the court
may require the probationer to be
imprisoned in the county jail or the house
of correction . . . .” Id. at 623 n.1
(emphasis added). It is difficult for me to
conclude that such defendants were not
sentenced to six months in jail even though
a sentence of probation was “pronounced.”
Yet, the rule we announce under
U.S.S.G. § 4A1.1 relies on the kind of
sentence that is pronounced. This defines
the sentence in Sturdivant as a sentence of
probation even though the sentencing court
clearly intended to sentence the defendants
to six months in jail. The intent of the
sentencing court is thus lost to the manner
of articulation because § 4A1.1 ignores the
reality that the precise pronouncement of a
sentence is governed by many factors that
are irrelevant to an ap prop riate
determination of a criminal history
category. Those factors can dictate the
manner of pronouncing sentence even as
they obfuscate the sentencing court’s
actual intent.
21 It is not clear from the opinion why
the judge pronounced the sentence in this
manner rather than simply sentencing the
defendants to a period of incarceration in
the county jail.

-- 19 of 21 --

20
The place of confinement is usually
more significant than the manner in which
a sentence is pronounced because the place
of confinement is more indicative of
pertinent offender characteristics for
purposes of calculating a subsequent
sentence under § 4A1.1. Furthermore, I
submit that relying upon the place of
confinement rather than the manner of
pronouncement is of greater, not less,
significance if a judge recommends
placement while leaving the ultimate
decision to an administrator of a
com mu nity corrections facility or
alternative housing. Such administrators
a r e alm os t al w ays e x p e r i en c e d
p ro f e s s i o n a l s w i t h e x p e r ti s e in
rehabilitation and/or treatment programs,
and sentencing judges usually lack such
expertise. The administrator’s decision to
admit a defendant to his/her program says
something about the level of threat the
defendant poses to the community, the
defendant’s potential for successful
rehabilitation and his/her ability to
cooperate in a therapeutic setting. That
assessment is certainly no less important
than a court’s pronouncement, and it may
be a great deal more important. It can be
factored into a § 4A1.1 analysis simply by
allowing the recommendation and the
place of confinement to be considered
when determining “a prior sentence of
imprisonment.”
To sum up, I am skeptical that the
Sentencing Commission or Congress
intended the result we reach today because
the rule we apply is inconsistent with the
objectives of the sentencing guidelines. It
codifies unintended disparities by treating
very different sentences alike and very
similar sentences differently under §
4A1.1. It erroneously assumes that
sentences are pronounced uniformly in all
j u r i s d i c t i o n s , a n d t h a t s u c h
pronouncements best allow a subsequent
court to determine if an earlier sentence
was intended to be served in a jail or in
alternative housing. In doing so, the rule
totally ignores the fact that many factors
unrelated to offender characteristics can
influence how sentences are pronounced in
various jurisdictions.
In United States v. Nelson, 918 F.2d
1268, 1272 (6th Cir. 1990), the Court of
Appeals for the Sixth Circuit noted that
Congress was attempting to eliminate
“illogica l, unjust and unw arrante d
disparity” in enacting the guidelines.22 I
can only hope that Congress and the
Sentencing Commission will act to
eliminate the illogical, unjust and
unwarranted disparity that will inevitably
accompany widespread use of the
pronouncement rule rather than allowing
that rule to hold sway. In the meantime, it
may be that such problems can only be
22 This court was not persuaded by
Nelson’s justification of using such
departures to eliminate disparities between
co-defendants in the same case. See United
States v. Seligsohn, 981 F.2d 1418, 1428
(3d Cir. 1992). We have, however, relied
upon the reasoning to support other
propositions. Id.

-- 20 of 21 --

21
minimized by judicious use of guideline
departures as suggested in Nelson.23
23 It may also be that the kind of
discrepancies I am concerned about are the
inevitable result of an attempt to
systematically quantify every conceivable
offender characteristic rather than
individualizing sentencing by allowing
experienced judges to consider everything
he/she deems relevant in a particular case
and impose a sentence that the judge
believes is fair, consistent with the
objectives of criminal sanctions, and in the
best interest of the community.
Although the pre-guidelines
approach certainly allowed disparity and
bias to creep into sentencing, it also
allowed judges to distinguish prior
sentences of imprisonment from treatment
in a custodial facility where appropriate.
Amending § 4A1.1 to allow consideration
of a prior sentencing recommendation will
certainly not transform the guidelines.
However, it will at least address one of the
disparities that now exist and it can do so
without opening the door to the bias that
many thought existed before the guidelines
were enacted.

-- 21 of 21 --